NCBA: New WOTUS Rule ‘Positive Development’

The Environmental Protection Agency and the Army Corps of Engineers on Tuesday announced a new Final Rule amending the definition of waters on the United States. The final rule intends to conform with the recent Supreme Court decision in Sackett v. EPA. National Cattlemen’s Beef Association Chief Counsel Mary-Thomas Hart told Southeast AgNet’s Sabrina Halvorson there are three practical changes in the new rule.

Interstate wetlands are no longer considered jurisdictional waters. The rules limit jurisdictional tributary to features that are relatively permanent standing or continuously flowing bodies of water and redefined the term adjacent can mean having a continuous surface connection so it does narrow the number of features across the country that are going to be subject to federal Clean Water Act permitting either from EPA or the Army Corps of Engineers.

Hart gives examples of how this will impact farmers and ranchers.

Think isolated ponds on a ranch. Because those are isolated, those are likely no longer jurisdictional. Ephemeral features on operations are also likely not jurisdictional anymore. And we were able to retain some of those really important agricultural exclusions for features like prior converted crop lands.

The unanimous Supreme Court decision in Sackett v. EPA was a major win for farmers. And Hart says this new ruling appears to follow in kind

I can’t overstate how big of a win that was. It was a massive win for farmers, ranchers and really all landowners and regulated stakeholders. In an effort to implement that decision and the next necessary step, I would say is, is a positive development and continues us down the path of achieving some finality and some really helpful clarity in this WOTUS base.

She adds, though, that it’s still early and they’re still dissecting the ruling, but she is hopeful

To your point, we’re definitely still doing a pretty careful read. I think that there is going to be the need for additional guidance than you know, implementation materials from the agencies. But now that we have this revised rollout, I think it gives us a good starting point. And hopefully, at least speaking for NCBA, we look forward to working with EPA and the Army Corps as they develop this implementation guidance document to ensure that we provide as much clarity as possible for landowners.

However, not all ag groups are praising the new rule. Farm Bureau President Zippy Duvall said EPA ignored other concerns raised by the Supreme Court Justices. National Cotton Council Chairman Shawn Holladay opined that the action may end up in the courts again.